LODHA, J.— This is a defendants-tenants second appeal arising out of a suit for ejectment in respect of a plot of land situated in Nehru Bazar in the town of Udaipur leased out to the appellant No. I Gulam Mohd. by Kishanlal original plaintiff on 1st February, 1962 on a monthly rent of Rs. 50/-. Kishan Lal died during the pendency of the suit and is now represented by his sons and daughters, who are respondents in this appeal The suit was based on two grounds namely, (1) personal necessity of the landlord for the plot in question and (2) sub-letting. Since the question of personal necessity has been decided against the landlord by both the Courts below and has not been pressed before me, I do not think it necessary to give the details of personal necessity alleged by the plaintiff. As regards the allegation about sub-letting, the plaintiff alleged in para No. 5 of the plaint that he had come to know on 1st June, 1968 that the defendant No. 1 Gulam Mohd. had sub-let the plot in question to Adarsh Loha Sahkari Samiti, Bapu Bazar, Udaipur (hereinafter referred to as the Samiti) clandestinely without the permission of the plaintiff. It was further alleged that a portion of the plot had also been sublet to the defendant No. 3 Chhotu (deceased) without the permission of the plaintiff. It may be stated, here, that Chhotu died during the pendency of the first appeal and his legal representatives were not brought on the record. It is necessary to state this fact, as an argument, which I shall deal with later, has been raised before me by the learned counsel for the appellant that on account of the failure of the plaintiff to bring on record the legal representatives of Chhotu, the appeal filed by the plaintiffs in the first appellate Court had abated.

2. To continue the narration of facts, the defendant No. 1 Gulam Mohd. dinied the alleged personal necessity of the plaintiff for the plot in question as well as the allegation regarding sub-letting, to either defendant No. 2, the Samiti or the defendant No. 3 Chhotu and further pleaded that he himself carries on business in the name of the Samiti and that this business of the Samiti was being carried on by him from the very day the plot was leased out to him and that the receipts for rent had also been issued in the name of the Samiti.

3. The trial Court negatived the plaintiffs allegations regarding personal necessity as well as sub-letting and dismissed the suit.

4. On appeal by the plaintiffs, the learned Additional Civil Judge, Udaipur, while upholding the trial Courts finding on the question of personal necessity, reversed the judgment and decree of the trial Court on the ground of subletting which was held to be proved and in the result decreed the suit for ejectment. Hence, this second appeal by the defendants Gulam Mohd and the Samiti

5. As already stated above, it appears that defendant No. 3 Chhotu who was respondent No. 3 in the first appellate Court, died during the pendency of the first appeal. The appellant Gulam Mohd. has filed his own affidavit in support of his contention that Chhotu died on March 24, 1973 during the pendency of the first appeal and has also produced death certificate issued by the Registrar, Birth and Death, Municipal Council, Udaipur under the Birth and Death Registration Act, 1969. It is submitted that on account of the failure on the part of the plaintiffs to bring on record the legal representatives of Chhotu, the appeal filed by the plaintiff abated and the learned Additional Civil Judge should have dismissed the appeal on this ground.

6. Learned counsel fur the respondents neither denied the factum of death of Chhotu during the pendency of the first appeal nor has he controverted the appellants regarding the date of death of Chhotu and the heirs left by him as mentioned in para No. 2 of Gulam Mohds affidavit. It must be therefore taken for granted that Chhotu did die during the pendency of the appeal in the lower appellate Court and his legal represent

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